In the United States, the common law doctrine, which favours the right of every man to practise in any profession or business in which he is competent, prevails to a great extent; and medicine being regarded by it as an honorific profession, no apprenticeship was required, but the practitioner always prescribed at his peril. This was also the doctrine of the civil law, which drew no barriers around either law or medicine. Any one who pleased might practise them without any previous qualification; subject always to responsibility for injury inflicted upon others.
In the absence of any statutes, therefore, limiting the common law right to practise medicine inherent in every person, the term physician may there be applied to any one who publicly announces himself to be a practitioner of the art and undertakes to treat the sick, either for or without reward. The common law knows nothing of systems or schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical, Electrical, Thompsonian, Homœopath, Reformed, Indian Doctor, Cancer Doctor, Indianopathist, Clairvoyant Doctor and regular physician are alike. The scales of justice are no more affected by the large doses of the allopathist than by the infinitesimal supplies of the homœopathist. But the law will sometimes interfere where one not pretending to be a practising physician uses a peculiar system in his own family. A father, during the sickness of his children and wife, refused to provide any medical treatment, except that applied by himself, called the Baunscheidt system, which consists in pricking the skin of the patient in different parts of the body with an instrument armed with |48| a number of needles and operated by a spring, and then rubbing the parts affected with an irritating oil. The wife and three children had died within a month. The man practised the exanthematic treatment upon them, but did not even call in physicians who used that mode. The Superior Court of Pennsylvania deprived this believer in the Baunscheidt panacea of the custody of his surviving children ([100]).
Before the common law every one undertaking to treat the sick professionally, and as the exercise of his vocation, is legally a physician. He has the rights of one, and when he assumes those rights the law lays upon him the heavy burdens and responsibilities of the profession. It is, of course, far otherwise if any statute prescribes particular qualifications for the practice of the profession and one undertakes to discharge its duties without such qualifications. Then he is doubly a wrong-doer; first, as against the statute; and, second, as against the public, who have a right to demand in him the ordinary proficiency of his profession ([101]).
In Arkansas, California, Connecticut, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, Texas and Vermont, there appear to be no statutory requirements regulating the practice of physicians or surgeons. In Virginia, the practitioner only needs a license. In Alabama, Florida, Georgia, Louisiana, Maine, Minnesota, Ohio and Wisconsin, a practitioner must either have a license from a medical board or society, constituted according to the law of the respective States, or else be a graduate of a medical college. In South Carolina and the District of Columbia, he must be licensed by the medical board; so, too, in Delaware. But this rule in Delaware does not apply to those who practise exclusively the |49| Thompsonian or botanic, or homœopathic systems; or practise gratuitously or for what is willingly given them.
In New York State, early in the century, it was enacted that no one practising physic or surgery, without a license, could collect any debts incurred by such practice, and it was a penal offence so to practise. In 1830, the unauthorized practice of physic or surgery was made a misdemeanor punishable by fine or imprisonment, or both. Shortly afterwards the offence was made penal instead of criminal, and it was declared the provisions should not extend to any one using or applying for the benefit of any sick person any roots, barks, or herbs, the growth or produce of the United States. In 1844, all laws limiting the right to practise medicine or surgery were repealed; free trade in physic prevailed; all examinations, certificates and licenses were declared unnecessary; the repealing Act expressly permitted any person to practise physic subject to punishment, as for a misdemeanor, if he should be convicted of gross ignorance, malpractice, or immoral conduct. However, a change came, and, in 1874, the legislature declared that it was “a misdemeanor for any person to practise medicine or surgery in the State of New York, unless authorized so to do by a license or diploma from some chartered school, State board of medical examiners, or medical society,” or to practise under cover of a medical diploma illegally obtained. The penalty for the first offence is a fine of not more than $200; for a subsequent offence a fine of from $100 to $500, or imprisonment for not less than thirty days, or both ([102]). In 1880, it was further enacted that no person shall “practise physic or surgery within the State unless he is twenty-one years of age, and has been heretofore authorized so to do pursuant to the laws in force at the time of his authorization, or is hereafter authorized so to do, either by license from the regents of the University of the State |50| of New York, a diploma of an incorporated medical college within the State, or of one without the State approved of by some proper medical faculty within the State.” Every physician or surgeon, except those who had been practising ten years before 1880 (and a few others), had to register with the clerk of the county, where he practised, his name, residence, place of birth, together with his authority to practise.
After the repeal of the old Medical Acts, and before the enactment of the law of 1874, the New York Court of Common Pleas had to define who was a physician or doctor, and it said the words simply meant, “a person who made it his business to practise physic; and it was wholly immaterial to what school of medicine he belonged, or whether he belonged to any. The legal signification of the term doctor means simply a practitioner of physic. The system pursued is immaterial. The law has nothing to do with the merits of particular systems.” The point came up in considering a case where an agreement of employment between an opera director and a vocalist provided for the forfeiture of a month’s salary in case the latter should fail to attend at any stated performance, except in the case of sickness, certified to by a doctor to be appointed by the director. The director appointed Dr. Quin, an homœopathist. Signor Corsi, the baritone, had a bad cold and a sore throat, but would not consult Dr. Quin, and proffered a certificate of an allopathist of his own choosing. This Max Maretzek would not take, and he refused to pay Corsi his salary. The singer sued, but the Court held that the provision was binding upon the artist, although the director had appointed a person in the practice of what is known as the homœopathic system of medicine. * * * The Court considered it was error to attempt in the then present state of medical science to recognize as a matter of law any one system of practice, or to declare that the |51| practitioner who follows a particular system is a doctor, and that one who pursues a different method is not ([103]).
It has been held, however, that where a “regular physician” is spoken of, an allopathic is meant ([104]).
In Iowa, the Court said, “As yet there is no particular system of medicine established or favoured by the laws of Iowa, and as no system is upheld none is prohibited. The regular, the botanic, the homœopathic, the hydropathic and other modes are alike unprohibited. Though the regular system has been advancing as a science for centuries, aided by research and experiment, by experience and skill, still the law regards it with no partiality or distinguishing favour, nor is it recognized as the exclusive standard or test by which the other systems are to be adjudged” ([105]).
Notwithstanding the New York law of 1874, one can undertake to effect cures by manipulation without possessing a diploma. He may even maintain an action for the compensation agreed upon, although not a graduate and having no license to practise. A man professed to cure by rubbing, kneading and pressing the body. The court considered his system was rather one of nursing than of either medicine or surgery, and that it could not result in any injury to the person practised upon than that of possible financial loss ([106]). Yet, in Maine, where a license is required, even a “medical clairvoyant” was held to come within the statute, and it was decided that he could not render his professional services without having the legal permission. In England, an unregistered person sued to recover his charges for galvanic operations, and for materials and electric fluid used therein. The jury decided in favour of the galvanizer, and the court |52| would not disturb the verdict, as the work was done before the Act of 1858 came into operation, but expressed a strong opinion that if the work had not been done when it was, it would have been impossible to hold that the case did not fall within the statute ([107]).
A physician must practise according to the principles of his school. There are distinct and different schools of practice; allopathic or old school, homœopathic, Thompsonian, hydropathic or water cure; and if a physician of one of those schools is called in, his treatment is to be tested by the general doctrines of his school, not by those of other schools. It is presumed that patient and physician both understand this ([108]).